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Wednesday, 20 November 2013

If you have opened a
newspaper recently then you will no doubt have acquired at least some knowledge
about the divorce of Michelle Young from tycoon Scot Young.This divorce has been in and out of the press
for various reasons over the last seven years and the final hearing in the
financial remedy proceedings have been ongoing at the High Court before Mr
Justice Moor over the last few weeks. If you believe Ms Young then the total value of the assets being
disputed is a whopping £700m but according to Mr Young he is bankrupt and in debt to the tune of approximately £28m.Mr Young claims that he lost his millions around the time the couple
split and has been living (somewhat extravagantly) since then off the
generosity of his rich and famous friends. Ms Young’s case is that Mr Young
planned an exit strategy to keep the money from her once he realised that the
marriage was in difficulties and that the money has been hidden in various
offshore schemes and is being fed back to him via the aforementioned friends
one of whom is currently paying Mr Young’s rent of £4,000 per month.

Several of these benefactors
submitted witness statements on Mr Young’s behalf to help prove that the
vast amounts of money they are paying him are indeed generous gifts and not
part of some greater fraud. Mr Young seemed to think that submitting said
statements would be sufficient to achieve this and has argued that there was no
need for any of his witnesses to be cross examinationed. Mr Justice Moor disagreed and the likes of Sir Philip Green
(Topshop) and Richard Caring (The Ivy/Annabel’s) were called to be cross examined by Ms Young’s lawyers last week.

Procedure
for Relying on Hearsay Evidence in Family Proceedings

Whilst the issue of whether
the witnesses would need to attend for cross examination may have been dealt with
as a pre-trial issue at the start of the hearing, if Mr Young was playing by
the Family Procedure Rules 2010 then he should have issued a notice to rely on
the witness statements as hearsay evidence under FPR 23.2 (which in turn refers
to section 2(1)(a) of the Civil Evidence Act 1995) together with an explanation as to why
those witnesses need not attend.This
would have then given Ms Young the opportunity to make an application under FPR 23.4 to call those witnesses herself, which may have been what has happened
here, and/or give notice of her intention to challenge the credibility of such
witnesses under FPR 23.5. If it was
found that the witnesses need not attend then Ms Young would still have had the
option of asking that the Court gives reduced weight to the evidence set out in
the statements under section 4 of the Civil Evidence Act 1995. This would have still
be the case in the event that any of the witnesses failed to turn up which would have been a very risky thing to do if the Court had ordered them to attend as this
would put them in breach of a Court order.

Why
so risky?

There can be no doubt that
the Family Courts are taking breaches of Court orders more seriously these days
and indeed Mr Young himself has already spent time in prison earlier this yearfor failing to comply with a Court order which stipulated that he had to provide financial disclosure to his wife. This trend is no doubt set to continue
following Sir James Munby’s comments in his 7th View from the President’s Chambers where he said that attitudes to orders made by the family
courts were “slapdash, lackadaisical and on occasions almost contumelious.” He
went on to say that “The court is entitled to expect – and from now on will
demand – strict compliance with all such orders.” These comments are aimed at
everyone involved in the family law process including public bodies, parties
and non-parties to proceedings and these sentiments were further spelled out by Sir Munby in his
judgment in the recent cases of Re W (A Child), Re H (Children) [2013] EWCA Civ1177 in which he said “Non-compliance with orders should be expected to have
and will usually have a consequence”. The message is far from ambiguous and there have been other
recent decisions where there have been serious consequences for contempt of
court:

Re Davies [2013] EWHC 3294 – A
mother had removed a child from the jurisdiction and her parents and her
sister were ordered to provide information as to their whereabouts. Mr Justice
Keehan found that each of them had lied to the Court and / or failed to provide
information in accordance with Court orders and found them
in contempt at a hearing on 25 October 2013. The parents and sister were
remanded in custody until the sentencing hearing on 31 October 2013 by which
time the daughter had heard what had happened and agreed to return to the
jurisdiction with the child (a factor which weighed heavily in their favour).
They were each sentenced to 12 days in prison, to serve 6 of which time served
would count. Keehan J indicated that, had the daughter not been located and
agreed to return, the mother would have been looking at months in prison (See Brown v Davies ([2013] EWHC 3523 (Fam) for sentencing
judgement).

Ball v Shepstone [2013] EWCC 7 (Fam) – A
father was found to be in contempt for failing to file a Form E in accordance
with the terms of a court order dated 15 July 2013. He was due to file the
Form E on 12 August 2013 but failed to do so. Hewas subsequently served with committal
proceedings on 16 September 2013, and at a hearing on 03 October 2013, he was
found guilty of contempt and sentenced to fourteen days in prison and ordered
to pay the wife’s costs.

Being cross examined is not
fun, it can be a stressful and unpleasant experience, and it is therefore not
surprising that people will try to avoid it if they can. The lesson from the
Young case, or at least the most recent lesson, would seem to be that if
you are asked to, or are advising someone on, providing evidence in family
proceedings then you/they had better be prepared to stand up in court and answer
some difficult questions on that evidence. In terms of complying with Court
orders, few practitioners would ever advise a client not to comply but the
emphasis on the consequences of non-compliance may need to be cranked up a
notch in light of these recent developments.

As usual thoughts and
comments are welcome.

A final judgment in the Young v Young divorce is expected to be given on Friday, 22 November 2013.